BETWEEN:
and
and DAIICHI PHARMACEUTICAL CO., LTD.
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on March 9, 2007.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20070309
Docket: A-500-06
Citation: 2007 FCA 105
Present: SHARLOW J.A.
BETWEEN:
NOVOPHARM LIMITED
Appellant
and
JANSSEN-ORTHO INC.
and DAIICHI PHARMACEUTICAL CO., LTD.
Respondents
REASONS FOR ORDER
[1] Before me is a motion for costs on an order I made on December 13, 2006, dismissing a motion by the appellant Novopharm Limited for a stay of the judgment of the Federal Court pending the disposition of this appeal (2006 FCA 406). The respondents Janssen-Ortho Inc. and Daiichi Pharmaceutical Co., Ltd. (collectively, “Janssen”) filed a joint motion record opposing the stay motion, and requested costs.
[2] My notes of the hearing indicate that neither party made oral submissions on costs. I did not mention costs in the order dismissing the stay or in my reasons.
[3] On January 30, 2007, Janssen filed a notice of motion seeking an order under Rule 400 of the Federal Courts Rules for an order granting the respondents costs in the stay motion in the amount of $45,000, or in the alternative, costs in an amount to be assessed by an assessment officer in accordance with certain directions.
Procedural issues
[4] Novopharm opposes the motion on the basis that costs cannot be awarded on a Rule 400 motion after judgment if the judgment itself is silent on costs: Pelletier v. Attorney General of Canada, 2006 FCA 418. In that case, unlike this one, costs had not been requested in the proceeding, so that the later motion for costs not consistent with the order sought in the proceeding. I do not read Pelletier as precluding Janssen from seeking costs on the stay motion, because it asked for costs in that proceeding.
[5] Pelletier also points out, in obiter dicta, that if costs are requested in a proceeding and the judgment is silent on costs, the appropriate remedy is a motion under Rule 397 for reconsideration of the judgment. In this case, Janssen did not refer to Rule 397 in its notice of motion, and it is now out of time for moving under that Rule. However, Janssen has invoked Rule 397 in its reply to Novopharm, along with a request for an extension of time for filing a motion under Rule 397.
[6] In this case, I inadvertently overlooked the matter of costs. If Janssen had moved for reconsideration under Rule 397 on a timely basis, I would have granted the motion for reconsideration and I would have entertained the motion for a lump sum award of costs or for directions. Having reviewed the material now before me, I consider it unlikely that Janssen would be unable to establish the grounds for an extension of time for a motion under Rule 397.
[7] I note also that part of Janssen’s motion falls squarely within Rule 403 (motion after judgment for directions on costs), and the motion was made within the time permitted by Rule 403(1)(a) (after taking into account the rule regarding days during the Christmas vacation). Rule 403(2) permits such a motion whether or not the judgment included an order concerning costs. Therefore, there is no procedural basis upon which Janssen’s motion for directions can be dismissed.
[8] I could dismiss the portion of the motion that seeks an award of lump sum costs, but if I did so it would be without prejudice to the right of Janssen to file a new notice of motion under Rule 397 for reconsideration, for an extension of time to bring that motion, and for the other relief sought in the current motion. However, that would not result in a just or efficient determination of the issue of costs (see Rule 3).
[9] In my view, this is an appropriate case to exercise my discretion under Rule 55, and treat the current motion for an award of lump sum costs as though Janssen had properly invoked Rule 397 from the outset. I do not read Novartis Pharmaceuticals Canada Inc. v. Rhoxalpharma Inc., 2005 FCA 188, as a decision that precludes the exercise of my discretion under Rule 55.
Whether success was divided
[10] Janssen argues that it is entitled to costs on the stay motion because it successfully opposed the motion. Novopharm argues that there was divided success because, although Janssen was successful in opposing the stay, Novopharm was successful in obtaining from Janssen an undertaking for damages as a condition of the dismissal of the stay motion.
[11] The undertaking is to abide by any order that the Court may make concerning damages if the appeal is allowed and it appears that that the judgment under appeal has caused damage to the Novopharm, during the period from December 13, 2006 to the day that is 120 days after the appeal is allowed, for which Novopharm ought to be compensated.
[12] The value of that undertaking cannot be determined at this stage because the appeal is still pending. However, it can be said that the undertaking gives Novopharm a right against Janssen that it would not have had, but for its motion for a stay. It can also be said that the motion for a stay might well have succeeded without that undertaking.
[13] In these circumstances I agree with Novopharm that success on the stay motion was divided. The parties should bear their own costs of the stay motion.
[14] Novopharm is entitled to its costs of this motion, which I will fix in the amount of $1,500 inclusive of disbursements and GST.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-500-06
STYLE OF CAUSE: NOVOPHARM LIMITED v.
JANSSEN-ORTHO INC. and
DAIICHI PHARMACEUTICAL CO., LTD.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
WRITTEN REPRESENTATIONS BY:
|
Marcus Klee |
FOR THE APPELLANT
|
|
Neil R. Belmore Ken Clark
Andrew I. McIntosh
|
FOR THE RESPONDENT JANSSEN-ORTHO INC.
FOR THE RESPONDENT DAIICHI PHARMACEUTICAL CO. LTD. |
SOLICITORS OF RECORD:
|
Ottawa, Ontario |
FOR THE APPELLANT
|
|
Gowling Lafleur Henderson LLP Toronto, Ontario
Bereskin & Parr Toronto, Ontario |
FOR THE RESPONDENT JANSSEN–ORTHO INC.
FOR THE RESPONENT, DAIICHI PHARMACEUTICAL CO. LTD. |